House Bill (HB) 2690, also known as the Women and Child Safety Act, would require ISPs to “make every reasonable and technologically feasible effort to block Internet access to information or material intended to assist or facilitate efforts to obtain an elective abortion or an abortion-inducing drug.”
The restrictions would block all efforts to “create, edit, upload, publish, host, maintain, or register a domain name for an Internet website, platform, or other interactive computer service that assists or facilitates a person’s effort in obtaining an abortion-inducing drug.”
Toth’s bill specifically names six websites: Aid Access, Hey Jane, Plan C, Choix Health, Just the Pill, and Carafem.
Enforcement of these restrictions will be carried out in civil litigation, but the state “may request or encourage an Internet service provider to comply.”
The bill brings up grounds for judicial review on the topics of data privacy, free speech, and digital information. What it means to “facilitate” an abortion could be defined in both broad and narrow terms, and both “websites” and “platforms” will be held liable for instituting these regulations.
The filtering of information on the internet and social media is not new for the Texas Legislature. HB 20, which prohibits technology companies from censoring users based on viewpoint, was passed last year and upheld in the U.S. Fifth Circuit Court of Appeals.
The bill applies to any resident of Texas, and penalties for the procurement of an abortion or use of abortion-inducing drugs can be levied regardless of where the operation of an abortion or use of the drug occurs. This includes a prohibition on the delivery or provision of abortion-inducing drugs to and from anyone in Texas.
ISPs like Google, Verizon, and AT&T provide internet through fiber cables and digital subscriber line (DSL) modems. Local ISPs like Spectrum sell access to customers through connections with larger ISPs, called tier one providers. These tier one providers own the infrastructure and provide email services, web hosting, domain registration, and browser and software packages.
Google, a tier one provider, keeps track of its users’ internet browser history and geolocation through its Location History functionality. In response to the overturning of Roe v. Wade, Google announced location data would automatically be deleted if “our systems identify that someone has visited one of these [abortion clinics or fertility centers.]”
Regulating website information through ISPs will be a difficult task to undertake, as ISPs often do not process the online data but usually outsource it to a third-party data broker that will aggregate the information, process it, and then license it.
Global marketing solutions company Interpublic Group (IPG) and its data broker subsidiary Acxiom recently released a statement related to the potential use of information from their data collection against women seeking to get an abortion.
“Neither IPG nor our subsidiary Acxiom collects personally identifiable information that could be used by law enforcement for abortion-related prosecutions,” they said. “In particular, we do not collect personally identifiable information (e.g. geolocation data, internet activity data, commercial transaction history data, or inferential data related to reproductive health).”
Content regulation related to abortion, as is the aim of Toth’s bill, once litigated in court, would likely come down to two Section 230 protections. One is the “Good Samaritan” provision that stipulates, “No provider or user of an interactive computer service shall be held liable on account of… any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
The second is the key provision often called the “twenty-six words that created the internet,” as it states platforms cannot be “treated as the publisher or speaker of any information provided by another” user or entity.
With Texas’ extensive pro-life laws, the Texas Heartbeat Act and HB 1280, and with the fate of Section 230 before the Supreme Court — Justice Clarence Thomas has remarked that the court should “consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by internet platforms — HB 2690 and the regulation of abortion information on the internet in Texas could stand on legal ground.
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Cameron Abrams is a reporter for The Texan. After graduating with a Bachelor’s Degree in Psychology from Tabor College and a Master’s Degree from University of the Pacific, Cameron is finishing his doctoral studies where his research focuses on the postmodern philosophical influences in education. In his free time, you will find him listening to a podcast while training for an endurance running event.